Citation Nr: 0125558
Decision Date: 10/30/01 Archive Date: 11/05/01
DOCKET NO. 99-12 915 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Evaluation of lumbosacral strain, currently rated as 10
percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Taylor, Associate Counsel
INTRODUCTION
The veteran had active service from May 1966 to June 1969.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a June 1998 rating decision of the St.
Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO).
In December 2000, the Board found that new and material
evidence sufficient to reopen a claim for service connection
for syringomyelia, with a syrinx in the cervical spinal
canal, status post T-2 laminectomy and shunt placement, had
not been submitted.
In December 2000, the Board remanded this issue for further
development. That development having been completed to the
extent possible, the Board will proceed with adjudication of
the claim.
In connection with his appeal, the veteran testified before
the undersigned member of the Board in Washington, D.C. via
videoconference in February 2000; a transcript of that
hearing is associated with the claims file. Additional
evidence was submitted to the Board in February 2000. The
veteran and his representative waived initial consideration
by the RO under the provisions of 38 C.F.R. § 20.1304(c)
(2001). The Board notes that the additional evidence was
considered by the RO, as the case was subsequently remanded
to the RO.
FINDING OF FACT
Lumbosacral strain is manifested by no more than
characteristic pain on motion.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for
lumbosacral strain have not been met. 38 U.S.C.A. 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.14, 4.40, 4.45, 4.59,
4.71a, Diagnostic Codes 5295 (2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Service connection for lumbosacral strain was granted in a
1979 rating decision. A noncompensable evaluation was
assigned. In a 1988 rating decision, a 10 percent evaluation
was assigned.
VA outpatient treatment records received in October 1997 show
that the veteran underwent a T2 laminectomy, midline
myelotomy, insertion of syringo-subarachnoid shunt for
syringomyelia in September 1996. By letter dated in
September 1997, J. P., M.D. of a VA medical center stated
that the veteran was unable to engage in employment requiring
physical labor. He further stated that the veteran could
engage in employment involving mental tasks/decision making
and moderate walking.
On VA examination in October 1996, the veteran reported
intermittent lumbosacral pain. He complained of becoming
stiff with prolonged sitting, bending, and lying down. He
also indicated that his back became stiff and sore with
certain movements. He stated that over the previous 3 years
he had noticed that after bending over for a half-hour he
would have to lie down. The report notes that he was
employed as a carpenter. He complained of pain from his
tailbone up to his lumbosacral area. No radiation was noted.
He reported numbness in his left lower extremity following
neck surgery for congenital syrix in 1996, and indicated that
he began using a cane after the surgery. He complained of
pins and needles in his left buttocks and that his foot felt
like a rock since the neck surgery.
Physical examination revealed that he stood with the support
of a cane. He limped, favoring his left lower extremity. No
spasm, splinting or tenderness of his lumbar spine was noted.
He had normal lumbar lordosis. No fixed deformity of the
lumbar spine was noted. He had poor toe and heel stance.
The examiner reported that his standing pelvis was level and
his Trendelenburg test was negative. No abnormality of the
musculature of the lumbosacral area was noted. He flexed 70
degrees with good reversal of the lumbolordotic curve. He
extended 30 degrees, laterally bended 30 degrees to either
side, and rotated 50 degrees to either side. Pain with
straightening from the flexed position was noted. Straight
leg raising was "sake." Patrick, hip motion and popliteal
pressure tests were negative. Deep tendon reflexes in the
lower extremities were 2+ and equal, both knee jerks and
ankle jerks. Diminished pinprick sensation of his left leg
was noted, beginning just below the knee and involving his
entire foot. X-ray examination of the lumbar spine was
reported to reveal no significant abnormality. The diagnosis
was that the veteran's left lower extremity symptoms by
history were related to his cervical problem and not to his
lumbosacral disorder.
In his July 1998 notice of disagreement, the veteran asserted
that the problems he had with his lower back were related to
the problems he had with his syrix.
In a May 1999 substantive appeal, VA Form 9, the veteran
reiterated that his lower back pain was related to his upper
back disorder. He indicated that he had Brown syndrome,
which also affected his left leg. He also stated that he had
scarring of the spinal cord and frequent spasms.
VA outpatient treatment records received in February 2000 are
negative for treatment or complaints of lumbosacral pain.
At his personal hearing in February 2000, the veteran
testified that he had intermittent pain and cramping in his
low back, especially when lying on his back. Transcript at 3
(February 2000). He stated that he did not do any heavy
lifting or bending from the waist to protect his back, and
that he had pain on changing direction. Id. He stated that
he had pain on walking more than 2 blocks. Id. at 5. He
testified that he was last employed in April 1995 in the
construction industry. Id.
On VA examination in February 2001, the examiner noted that
the veteran had been diagnosed with complex regional pain
syndrome and Brown-Sequard syndrome. Surgery for
syringomyelia in 1996 was noted, with persistent pain and
weakness on the left side of his body. The report notes that
since the surgery, the veteran had numbness on the left side
of his body. The veteran reported that his left foot felt
cool and that when he stepped on a wet surface it felt as if
he was stepping on a rock. The report notes that he
continued to have symptoms in his left upper extremity, left
side of the body, continued spasm mostly in the left his side
of the body. He sometimes had throbbing pain on the inside
of his left leg. He stated that in cold air and weather, he
had hyperesthesia in the left side of his body involving his
left upper extremity, left lower extremity, and left side of
his trunk. No symptoms on the right side were noted. He
stated that he had lost weight and muscle tone in both lower
extremities because he was unable to exercise because he had
no use of his left lower extremity. He reported that he was
unable to bend over and needed to lie down to get his back
straight. He stated that his left foot swelled and that he
was unable to sit for greater than 10 minutes because of left
foot pain.
Physical examination revealed that he walked with a marked
limp of an antalgic type and also had weakness in his left
lower extremity. The report notes that he used a cane for
support, holding it in his right hand. The examiner reported
that the veteran had an abnormal foot tap on the left,
demonstrating marked weakness of his entire left lower
extremity, including his hip flexors, abductors, quadirceps,
ankle, and toe dorsiflexors, as well as plantar flexors.
Weakness of a lesser extent in his left hamstrings was noted.
The veteran was able to use his abdominal muscles in sitting
up from the lying down position and had no significant
splinting or pain in performing this activity. No fixed
deformity of the lumbar spine was noted. His lumbar lordosis
was normal. The examiner reported difficulty with range of
motion testing because of weakness in his left lower
extremity. On straight leg raising, Lasegue and popliteal
pressure tests, there was no radicular component to pain.
The report notes that the veteran's pain was at his waist
level, which was at the upper lumbar area. He had diminished
pinprick sensation in his left thigh, abdominal wall, and a
hyperesthesia in his left leg from his knee downward,
involving all of his toes. His deep tendon reflexes were 2+
and equal, both at the knees and ankles. His hip motion was
satisfactory and the Patrick sign was negative.
In conclusion, the examiner opined that the veteran had
significant pain and weakness in his left lower extremity
causing him to place an abnormal load on his lumbar spine.
The examiner stated that what little pain he had in the
lumbar spine was felt to be attributable to his syringomyelia
and subsequent surgery and not related to the lumbosacral
strain or sprain that he had while in service. The examiner
also stated that the fatigability and weakness was related to
his syringomyelia and not to his lumbar strain.
Criteria
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.1 (2001).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See 38 C.F.R. §
4.2 (2001);
Francisco v. Brown, 7 Vet. App. 55 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2000).
The Court has held that a veteran may not be compensated
twice for the same symptomatology as "such a result would
overcompensate the claimant for the actual impairment of his
earning capacity." Brady v. Brown, 4 Vet. App. 203, 206
(1993). This would result in pyramiding, contrary to the
provisions of 38 C.F.R. § 4.14. The Court has acknowledged,
however, that when a veteran has separate and distinct
manifestations attributable to the same injury, he should be
compensated under different diagnostic codes. Esteban v.
Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet.
App. 225 (1993). Similarly, the use of manifestations not
resulting from service-connected disease or injury in
establishing the service-connected evaluation is to be
avoided. 38 C.F.R. § 4.14.
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to pain supported by
adequate pathology and evidenced by visible behavior of the
veteran undertaking the motion. 38 C.F.R. § 4.40 (2001).
The factors of disability affecting joints are reduction of
normal excursion of movements in different planes, weakened
movement, excess fatigability, swelling and pain on movement.
38 C.F.R. § 4.45 (2001).
The intent of the rating schedule is to recognize painful
motion with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (2001).
The Court has held that functional loss, supported by
adequate pathology and evidenced by visible behavior of the
veteran undertaking the motion, is recognized as resulting in
disability. DeLuca v. Brown, 8 Vet. App. 202 (1995);
38 C.F.R. §§ 4.10, 4.40, 4.45 (2001).
Under Diagnostic Code 5285, if a fractured vertebra does not
involve the spinal cord, or if there is no abnormal mobility
requiring a neck brace (jury mast), the disability is rated
in accordance with limitation of motion or muscle spasm,
adding 10 percent for demonstrable deformity of the vertebral
body.
The Rating Schedule provides a compensable rating for
limitation of motion of the lumbar spine with the assignment
of a 10 percent disability when slight, 20 percent when
moderate, or 40 percent when severe. 38 C.F.R. § 4.71a,
Diagnostic Code 5292 (2001).
The Schedule provides a noncompensable evaluation for
intervertebral disc syndrome when post-operative, cured, 10
percent when mild, 20 percent when moderate and characterized
by recurring attacks, 40 percent when severe and
characterized by recurring attacks with intermittent relief,
and 60 percent when pronounced with persistent symptoms
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk or other
neurological findings appropriate to the site of the diseased
disc, with little intermittent relief. 38 C.F.R. § 4.71a
Diagnostic Code 5293 (2001).
The Schedule provides a non-compensable rating for
lumbosacral strain when based on slight subjective symptoms
only, 10 percent with characteristic pain on motion, 20
percent with muscle spasm on extreme forward bending, loss of
lateral spine motion, unilateral, in standing position, and
40 percent with severe lumbosacral strain manifested by
listing of whole spine to opposite side, positive
Goldthwait's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2001).
VCAA
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000). This law eliminates the concept of a
well-grounded claim, redefines the obligations of VA with
respect to the duty to assist, and supersedes the decision of
the United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order) (holding that VA cannot assist in the
development of a claim that is not well grounded). The new
law also includes an enhanced duty to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA is applicable to all claims
filed on or after the date of enactment, November 9, 2000, or
filed before the date of enactment and not yet final as of
that date. VCAA. See also Karnas v. Derwinski, 1 Vet. App.
308 (1991). In this case, even though the RO did not have
the benefit of the explicit provisions of the VCAA, VA's
duties have been fulfilled.
First, VA has a duty to notify the veteran and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. VCAA,
(U. S. C. A. § 5102 and 5103); 66 Fed. Reg. 45,620 (Aug 29,
2001) (to be codified as amended at 38 C. F. R. § 3.159
(2001). The record shows that the veteran was notified in
the June 1998 rating decision of the reasons and bases for
the denial of his claim. He was further notified of this
information in the January 1999 and February 2001 statement
of the case and supplemental statement of the case,
respectively. The Board concludes that the discussions in
the June 1998 rating decision, as well as in the statement
and supplemental statement of the case, which were all sent
to the veteran, informed him of the information and evidence
needed to substantiate this claim and complied with VA's
notification requirements.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. VCAA, (U. S.
C. A. § 5103A); 66 Fed. Reg. 45,620 (Aug 29, 2001) (to be
codified as amended at 38 C. F. R. § 3.159 (2001)). The
veteran has not identified any available unobtained evidence
that might aid his claim or that might be pertinent to the
bases of the denial of this claim. The Board notes that the
veteran was afforded the opportunity for a hearing and to
provide additional evidence after the hearing and did so. In
this case, the Board finds that VA has done everything
reasonably possible to assist the veteran. There is
sufficient evidence of record to decide the claims properly.
In the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
notify and to assist the veteran in this case. Further
development and further expending of VA's resources is not
warranted.
The Board notes that VA issued regulations to implement the
VCAA in August 2001, 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to
be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)). The amendments were effective November 9,
2000, except for the amendment to 38 C.F.R. § 3.156(b), which
is effective August 29, 2001. Except for the amendment to 38
C.F.R. § 3.156(a), the second sentence of 38 C.F.R. §
3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that
"the provisions of this rule merely implement the VCAA and
do not provide any rights other than those provided in the
VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where
the record demonstrates that the statutory mandates have been
satisfied, the regulatory provisions likewise are satisfied.
Analysis
The veteran's lumbosacral strain is currently evaluated as 10
percent disabling under the provisions of 38 C.F.R. § 4.71a,
Diagnostic Code 5295. The Board does not find that a rating
in excess of 10 percent for lumbosacral strain is warranted.
The veteran contends that his lumbosacral strain has
increased in severity and that he has additional functional
loss due to pain. He testified that he guards against
bending at the waist, and has pain on changing positions and
with prolonged walking and sitting.
The October 1996 VA examination showed that the veteran
flexed 70 degrees, extended to 30 degrees, laterally, bended
30 degrees to either side, and rotated 50 degrees to either
side. X-ray examination of the lumbar spine was normal.
On VA examination in February 2001, a marked limp and marked
weakness of his left lower extremity were noted.
Additionally, the report notes that the veteran used a cane
for support, which he held in his right hand. He was able to
sit up from a lying down position using his abdominal
muscles. Range of motion difficulties were attributed to
left lower extremity weakness, not lumbosacral strain.
Musculature of his lumbar areas were felt to be normal. The
report notes that the veteran's pain was at waist level, in
the upper lumbar area. The examiner specifically stated that
what little pain he had in the lumbar spine was attributable
to his syringomyelia and associated surgery, and not related
to the service-connected lumbosacral strain or sprain. As
noted above, the veteran is not service connected for
syringomyelia. The degree of impairment due to the
syringomyelia may not be considered in evaluating the
lumbosacral strain. 38 C.F.R. § 4.14.
The veteran contends that he has additional impairment due to
functional loss, as a result of his lumbosacral disability.
He claims that his lumbosacral disability is exacerbated by
prolonged sitting, bending over for more than a half-hour,
lying down, walking for more than 2 blocks, and changing
positions. However, the February 2001 VA examiner attributed
any pain, fatigability, and weakness in the lumbar area to
his syringomyelia and not to lumbosacral strain. The report
of examination notes that he was able to sit up form the
lying down position and had no significant pain in doing so.
In reaching this determination, the Board has specifically
considered DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R.
§§ 4.40, 4.45, 4.59 (2001). The veteran is competent to
state that he is worse and that activity further limits his
ability. Weighed against his statements are the opinions of
skilled professionals who have determined that any pain,
weakness, or fatigability was attributable to a non-service
connected disorder. The Board concludes that the
determinations of skilled professionals are more probative of
the degree of impairment and that the preponderance of the
evidence is against the claim.
With respect to diagnostic code 5295, there is no medical
evidence that the service-connected lumbosacral strain has
resulted in narrowing or irregularity of joint spaces, osteo-
arthritic changes, listing of the whole spine to the opposite
side, positive Goldthwait's sign, or abnormal mobility on
forced motion. As with a rating based on limitation of
motion, there is no evidence that any of the limitations
required for a 20 percent evaluation under diagnostic code
5295 are likely to result from pain on use or during flare-
ups.
Since there is no evidence of complete bony fixation of the
spine or ankylosis of the lumbar spine Diagnostic Codes 5286
and 5289 are not applicable.
In addition, there is no evidence of invertebral disc
syndrome. X-ray examination was normal in October 1996.
Thus, there is no basis for an increased evaluation under
38 C.F.R. § 5293.
In sum, the veteran does have low back complaints and
pathology that affects the lower extremities. However, it is
the obligation of the Board to determine the veteran's
functional impairment due to the service-connected
lumbosacral strain. To the extent that other pathology
exists, such impairment must be excluded from rating the
service-connected lumbosacral strain, assuming the evidence
provides a basis for our decision. It is for this reason
that the Board remanded the case for further development.
The October 1996 and February 2001 VA examiners clearly
determined that the veteran's lumbar spine functional
impairment and the lower extremity functional impairment were
not related to the service-connected lumbosacral strain or
sprain. Based upon the objective evidence and the provisions
of 38 C.F.R. § 4.14, we conclude that the lumbosacral strain
is not productive of more than characteristic pain on motion.
The preponderance of the evidence is against the claim and
there is no doubt to be resolved.
The Board does not find that consideration of an
extraschedular rating under the provisions of
38 C.F.R. § 3.321(b)(1) (2001) is in order. The evidence
failed to show that the veteran's lumbosacral strain has in
the past caused marked interference with his employment, or
that such has in the past or now requires frequent periods of
hospitalization rendering impractical the use of the regular
schedular standards. Id. While Dr. J. P. stated that the
veteran was not able to do physical labor, there is no
medical opinion that the veteran is unemployable. In fact,
Dr. J. P. specifically stated that the veteran was able to
work in other fields, such as in jobs involving mental tasks
and/or decision making. In sum, there is no medical opinion
of record to the effect that the veteran's service-connected
lumbosacral strain results in marked interference with
employment as to render impractical the application of the
regular schedular standards.
ORDER
An evaluation in excess of 10 percent for lumbosacral strain
is denied.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals